DISSENTING OPINION OF JUDGE LEVITS

I.

1. To my regret I cannot agree in this case with the findings and particularly with the reasoning of the majority of my colleagues.

2. I completely share the objections of Judge Bonello expressed in his dissenting opinion in respect to the margin of appreciation left to the Contracting states regarding electoral laws including reasons for disqualification of candidates.

3. Indeed the Strasbourg organs had left to the Contracting States in those matters the widest possible margin of appreciation. In the following I would like to explain why, in my view, this case should also be covered by the margin of appreciation.

II.

4. All democracies are based on the same common values and main principles. However, the legal shape of these values and principles in the constitutional order is different from state to state. Therefore we can speak about a pluralism of the modern democratic constitutional orders.

The pluralism of democratic constitutional orders applies also to the electoral systems as a part of the constitutional order of a democratic state. Electoral systems are also different from state to state, but all of them are democratic, if they obey certain principles which are essential for democratic elections.

5. With regard to electoral rights as a central element of the constitutional order of a democratic state we can say that there is a common universal principle on which these rights are based. It is the principle according to which the majority of the people have both active and passive electoral rights. Compliance with this principle could be regarded as the central issue in the assessment whether an electoral system should be recognised as democratic.

6. Nevertheless, this principle is never applied without exceptions. Indeed, national constitutional orders contain democratic electoral rights, but at the same time they ban some people from exercising these rights. Thus, we can say that this ban is an exception from the general rule.

7. Concerning some types of disenfranchisement, there is a uniform approach amongst the democratic states. All theses states ban from elections persons of unsound mind and minors. The exclusion of both groups is regarded as natural so that this is never seen as a problem. [18]

8. Besides minors, another large group of the population is normally excluded from elections – aliens, including those born in the country or long-standing residents. This is a natural consequence of the concept of a national democratic state.

Nevertheless, even here, there is no absolutely uniform state practice. In some Member States of the Council of Europe the disenfranchisement of foreigners was lifted and this large group has been granted electoral rights under certain conditions and mainly at a local level (Ireland as early as in 1963; it was followed by Sweden, Norway, the Netherlands, Denmark, and Finland; United Kingdom lifted the exclusion of the citizens of the Commonwealth states for all elected posts – including the national Parliament).

On the contrary, in 1990, in an extensively reasoned judgment, the German Constitutional Court held that lifting the disenfranchisement of foreigners would constitute a violation of the very essence of the principle of democracy and national sovereignty [19] .

9. In many Contracting States, a person loses his/her electoral rights after a conviction by a criminal court. For example, in Austria and in Germany , people sentenced to more than one year ’ s imprisonment are banned from elections. In Ireland , such legal consequences are entailed by a sentence to more than six months ’ imprisonment, whereas in Belgium four months ’ imprisonment suffices. In the United Kingdom , a person sentenced to any kind of imprisonment is disenfranchised. [20]

On the contrary, in Sweden convicted persons are not disenfranchised at all. In a judgment of 5 March 2003 the Latvian Constitutional Court also found that a Latvian legal provision banning sentenced persons from elections contradicted the principle of free elections.

10. It is also to be noted that some civil misbehaviour may be held as a sufficient reason for disenfranchisement. For instance, in the United Kingdom and in Ireland , a person declared to be bankrupt is excluded from electoral rights. Obviously, the national legislator wanted to protect the institution of Parliament from persons who, in the eyes of society, do not have the necessary credibility to exercise these rights.

11. The constitutional orders of different democratic states provide for a deprivation of active and/or passive electoral rights also for some other reasons, which vary from state to state, for example, the residence of a citizen abroad can be a ground for his/her disenfranchisement. Furthermore,

some Contracting States ban from elections different categories of state servants (e.g., Greece , Spain , Ireland , Portugal , and Finland ).

12. In conclusion, the constitutional orders of all democratic states contain electoral rights, based on the general principle that the majority of the people possess these rights . At the same time, all constitutional orders provide also for some grounds for exclusion from these rights.

13. The Court has recognised that the rights in Article 3 of Protocol No. 1 are not unlimited, that, by analogy with Articles 8 to 11 of the Convention, there is room for implied limitations. The States have a wide margin of appreciation in this area, but it is for the Court to determine in the last resort whether the requirements of Article 3 of the First have been complied with. [21] Thus, the rights concerned can be restricted by law, but the restrictions must pursue a legitimate aim, and the restriction must be proportionate. [22]

III.

14. In order to understand the legal character of electoral rights, it is important to emphasise that they are personal political rights which are a part of the institutional order of the State.

Therefore, the functions of electoral rights are different from that of human rights. The functions of these rights are to ensure the democratic participation of the people in the governing of the state and to legitimate state institutions, whereas the functions of human rights are to protect the personal freedom of individuals from state interference and, furthermore, to guarantee some material or immaterial benefits.

In other words, electoral rights are an instrument in the hands of an individual to influence the state policy, whereas human rights are a legal “shield” conferred on an individual against state interference in his/her freedom, and in some situations it is also a legal ground to demand from the state some benefit for himself or herself.

15. Consequently, in the national constitutional orders, and because of their different legal character, electoral rights are never regarded as human (basic, fundamental) rights but rather as political rights belonging to the institutional part of the constitutional order.

Therefore the legal scope of these rights, their interpretation and their application in practice follow different rules from those governing human rights.

16. Article 3 of Protocol No. 1 is the only Convention provision which makes electoral rights individual human rights. That cannot eliminate the specific character of electoral rights as political rights, but lends them a double character: they are at one and the same time human rights (in the Convention system) and political rights. [23]

17. When examining applications under Article 3 of Protocol No. 1, the Court always faces a certain dilemma: on the one hand, of course, it is the Court ’ s task to protect the electoral rights of individuals; but, on the other hand, it should not overstep the limits of its explicit and implicit legitimacy and try to rule instead of the people on the constitutional order which this people creates for itself.

This dilemma is unique problem within the Convention system, because only the rights in Article 3 of Protocol No. 1 have this double legal character as human rights and an important element of national constitutional order.

18. The appropriate way out of this dilemma is to use the instrument of margin of appreciation . That means that in examining the legitimate aim and the proportionality of a restriction, it is necessary to give a different weight to these two elements: if the Court finds that the restrictions pursue a legitimate aim and are not arbitrary, then only in exceptional situations can this restriction be found disproportionate.

Therefore, the Court should not disregard the specific character of Article 3 of Protocol No. 1. The Court should be aware of the fact that through its adjudication on matters arising under Article 3, it can unduly influence the national constitutional order of a Contracting State . In other words, the Court is not empowered by the Convention system to interfere directly in the democratic constitutional order of a State . Otherwise, there would be a violation of the principles of democracy and State sovereignty. A too simplistic approach to the examination of this Article can easily lead to a violation of both these principles.

19. It seems that the Court and the former Commission were indeed aware of the special character of Article 3 of Protocol No. 1. As the case-law shows, the general policy of the Strasbourg organs was to leave to the Contracting states the widest possible margin of appreciation in order to avoid a challenge to the principles of democracy and state sovereignty. [24]

In fact all the abovementioned restrictions provided for in electoral law, in the constitutional orders of the different Contracting States, have been found by the Strasbourg organs to be compatible with Article 3 of Protocol No. 1. Only in a few exceptional situations, when the very core of the electoral rights was at stake, [25] has the Court has found a violation.

IV.

20. The finding of the majority, that the restrictions in the instant case pursued legitimate aims (§ 86 of the judgment), should in my view already indicate, that these restrictions were proportionate.

However, afterwards the majority applied the margin of appreciation in very narrow manner and consequently found the restrictions to be disproportionate.

I cannot share this view. On the contrary, in my view, the public interests in the instant case justified allowing to the respondent State and even wider margin of appreciation than in an “average” case under Article 3 of Protocol No. 1.

21. The majority recognise that the provision of Latvian law which disenfranchises those who continued to participate actively in certain organisations after 13 January 1991 pursues legitimate aims – to protect the independence of the Latvian state, its democracy and national security (§ 86 of the judgment). Furthermore, the majority also recognise that restrictions were proportionate during the first years after the re-establishment of an independent democratic state (§ 92 of the judgment).

But then the majority analyse the current situation, and come to the conclusion that the applicant poses no more threat to the “legitimate aims” protected through the restrictions concerned (§§ 92-99 of the judgment).

22. I can agree with majority that in the current situation the applicant is no longer a real danger to the State and democracy, if the word “danger” is taken to mean only the preparation of a new “coup d ’ état ” like those which happened twice in 1991. I would like to point out that only a mass defence of the Latvian Parliament and Government by mainly unarmed people (the so-called “barricades of Riga ”) thwarted these attempts.

23. The Court should always be aware of the context of a case, especially in a politically sensitive and complex case like this one.

The first aspect of the general context of the instant case, which should be taken into account, is that of the re-establishing of a democratic order after an undemocratic (totalitarian) regime. [26] Most of the “old” Contracting States do not have any real experience in that. The second aspect is that of the re-establishing of an illegally occupied State. That means liquidating an illegal situation caused by a foreign state in continuous breach of international law. [27]

The majority formally recognise, though in general terms, the difficult context in which this case is embedded (§§ 90-92 of the judgment). Nevertheless, when analysing the details of the case the majority seem to have lost, sight of its true significance.

24. One of the most important problems for the new democracies is the confidence of people in their institutions. However, general confidence in the democratic institutions is a conditio sine qua non for a stable democracy.

Indeed, people have experienced a system of injustice ( Unrechtsstaat ), and that makes it difficult for them to recognise the good intentions of democratic politics and institutions. Distance from of the state institutions and distrust of politicians is a usual and in a sense “normal” pattern of society in new democracies, especially when the “revolution” is over and the democratic routine starts.

25. In the context of this case it is important to note that building confidence in the new democratic institutions is considerably impeded if the new institutions (governmental bodies, public authorities, parliament, etc.) are permeated by protagonists or former representatives of the old regime of injustice – despite the fact that they might still have support in some parts of the society.

26. All these are elements of the general problem of “coping with the past” ( Vergangenheitsbewältigung ) which all the new democracies are facing.

Society and the State must find the right way to deal with injustices of the former regime: how to compensate the victims, how to treat the protagonists of the previous system of injustice, how to show to individual members of the society the qualitative difference between a system of injustice and a democratic system guided by the rule of law.

27. There is little help from the traditional “old” democracies in this respect, whether in the fields of (legal) theory or practice. Their advice is rather superficial. These questions were not relevant to them. [28]

Therefore it is rather for the new democracies themselves to develop the right solution to these problems both in legal and political theory and in practice.

28. The scale of possible attitudes to these problems in the new democracies is very wide and differs from state to state. It depends on many factors like the relative strength of the democratic forces and the protagonists of the regime of injustice; the particularities of the democratic revolution; the degree to which of the new elite is intermixed with the protagonists or former representatives of the old regime; the historical experiences, and similar circumstances.

In some states there has been a formal criminal prosecution of the representatives of the former regime who committed crimes. Nevertheless, the principle of nulla poena sine lege prohibits the prosecution in most cases; therefore the criminal activities of former state officials may remain without a just criminal punishment. [29]

South Africa , Argentina and some other states in Latin America have established “truth commissions” as an instrument of the policy of the “coping with the past”. [30]

29. In several new democratic states the laws provide preventing some restrictions for the former representatives and protagonists of the old system of injustice from holding some official posts, especially in the civil service.

For example, in Germany , the law provides preventing certain restrictions for the former agents of the secret service of the East German regime (“ Stasi ”) from holding a parliamentary office.

This law has also been applied in practice. For example, on 29 April 1999 , a member of the Parliament (“ Landtag ”) of Th ü ringen (a German “ Land ” ) was deprived of his seat after it was revealed that he had been an agent of the secret service under the old regime. [31] In the context of this case, it should be noted that, as in Latvia , it was not necessary to prove the individual guilt of the former agent – it was enough to prove that a parliamentarian had indeed been an agent of the secret service.

Again, as in Latvia , it was not necessary to examine whether he or she still presented an actual danger to the democratic order. The reason for this exclusion was the general assumption that such a person discredits the Parliament .

The purpose of such restrictions for members of Parliament has also been explained by the German Federal Constitutional Court in a case concerning the regulations for the special procedure for investigation whether deputies of the Federal Parliament formerly acted as agents of the “ Stasi ”. The Federal Constitutional Court ruled that the reason for this investigation was the assumption, “that the former activities of a deputy as an agent of the state security [of the former GDR] deprives him or her of the legitimacy needed to be a deputy of the German Bundestag. This regulation does not question his or her honour as a personal right deserting legal protection, but [rather] his or her suitability to represent the people in Parliament”. [32]

30. It should also be noted that in some new democracies there is no specific policy of “coping with the past”, and the discussion on these questions has not yet begin. In other countries, such discussion only starts after a certain period of time, when the democratic culture and the legal consciousness attain a certain level and when there is no more fear that the old forces may come back. For example, the discussion about such problems in Argentina and Chile started and measures against the representatives of the former authoritarian regimes were taken only recently, nearly two decades after the establishing of the democratic order.

Therefore the implicit expectation of the majority in the instant case that these problems would continuously diminish without any discussions and any specific policy (§§ 92 and 97 of the judgment), is unrealistic, at least as long as the whole generation of victims of the former Soviet system of injustice is still alive.

31. The variety of different attitudes towards the complex problem of “coping with the past” allows only one conclusion – there cannot be a uniform approach.

Only an intensive discussion in society and an organised State policy aimed at redressing the injustice of the former system and strengthening the people ’ s confidence in democratic institutions (which may also include some restrictions on the protagonists of the former regime), can, in the long term, lead to a reconciliation in society and contribute to the stabilisation of the democratic order. It should also be mentioned that the reconciliation process requires some remorse on the part of the protagonists of the former regime for having committed injustice (which, as my colleague Judge Bonello notes in his dissenting opinion, is not the case with the applicant).

Anyway, it is a genuine political process in each country, which should not be distorted by simplistic judicial verdicts.

32. In Latvian society, the discussion on whether these restrictions are (still) necessary, is continuing. The Constitutional Court ’ s judgment of 30 August 2000 , accompanied by a strong dissenting opinion of three judges, reflects this discussion. It should also be mentioned that, after very long and intensive discussions, the Latvian Parliament decided to lift these restrictions for the elections to the European Parliament in 2004.

33. In my view, the Court should respect the deeply political character of this problem, instead of substituting itself for society and delivering a judicial decision on this issue. This will neither bring the discussion to an end nor solve the problem. In any case, some restrictions on the passive electoral rights of protagonists of the old regime of injustice are not disproportionate in comparison to the aims of these restrictions, especially strengthening confidence in the new democratic institutions. These restrictions are covered by the concept of the “self-defending democracy”, which is also recognised in the settled case-law of the Court and to which the majority (also refer) in the instant case (§ 92 of the judgment).

V.

34. The majority departed from the general principles, developed by the case-law of the Strasbourg organs in cases where persons were disenfranchised for “uncitizenlike conduct”, without having reasonable grounds for that change.

In my opinion, one of the weakest points of the reasoning adopted by the majority is the second part of § 88, in which the Court tries to draw a distinction between the present case and the case-law of the former Commission concerning the electoral rights of persons convicted in the aftermath of the World War II for collaboration with the enemy or similar uncitizenlike conduct during the war. In particular, in § 84 of the judgment, the Court quotes three decisions that are worth examining more thoroughly.

35. In the case of X. v. the Netherlands [33] , the applicant, born in 1888, was convicted for “uncitizenlike conduct” by the Amsterdam Special Court in 1948. The applicant never participated in armed conflict against the legitimate Dutch authorities, nor did he take active part in any repressive mechanism set up by the Nazi occupation force. He was essentially blamed for having adopted a disloyal attitude, before and during the war, being officially the director of the Dutch Christian Press Bureau and unofficially a member of the Dutch National-Socialist Movement and a strong sympathiser with the Third Reich. Nevertheless, the Dutch authorities considered his fault to be sufficiently grave to deprive him for life of his right to vote. The Commission examined his application in 1974 – that is to say almost thirty years after the events – and declared it manifestly ill-founded in the following terms:

“[I]t does not follow that Article 3 accords the rights unreservedly to every single individual to take part in elections. It is indeed generally recognised that certain limited groups of individuals may be disqualified from voting, provided that this disqualification is not arbitrary.

[T]he Commission has still the task of considering whether the present deprivation of the right to vote is arbitrary and, in particular, whether it could affect the expression of free opinion of the people in the choice of the legislature. This is clearly not so in the present case.

( ... )

[As regards Article 14 of the Convention, t]he Commission ( ... ) finds it appropriate to refer to the jurisprudence of the European Court of Human Rights (judgment of 23 July 1968 – in the case “relating to certain aspects of the laws on the use of languages in Education in Belgium”) which laid down criteria for consideration of differences in treatment: objective and reasonable justification of a measure and reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The Commission has analysed the intention of the laws depriving, in several countries, convicted disloyal citizens of certain political rights, including the right to vote. The purpose of such laws is to prevent persons, who have grossly misused in wartime their right to participate in public life, from misusing their political rights in the future. Crimes against public safety or against the foundations of a democratic society should thus be avoided by such measures.

The Commission considers that this ratio legis meets the criteria laid down by the Court in the above mentioned judgment.”

36. The second decision was adopted in the case of X v. Belgium [34] . In February 1948 the applicant, born in 1912, was convicted by the Brussels Military Court and sentenced to twenty years of extraordinary detention for collaboration with the enemy during the war. In February 1951 his prison term was reduced to eighteen years, and several months later he was conditionally released. However, his conviction initiated the automatic application of a legal provision depriving him permanently of the right to vote in national and local elections. In 1979, the Commission rejected his complaint in the following terms:

“[The] right [to vote], which is neither absolute nor unlimited, is subject to certain restrictions imposed by the Contracting Parties, provided that these restrictions are not arbitrary and do not interfere with the free expression of the people ’ s opinion ( ... ).

When required to decide on cases of this kind, the Commission must decide whether or not this negative condition is fulfilled. In other words, it must decide, in the present instance, whether the permanent deprivation of the right to vote following conviction for treason, of which the applicant complains, is arbitrary, and, in particular, whether it is calculated to prejudice the free expression of the opinion of the people in the choice of the legislature. The Commission is of the opinion that this is certainly not the case in the present instance.

In fact, it notes that in Belgium, as in other countries, the purpose of legislation depriving persons convicted of treason of certain political rights and, more specifically, the right to vote is to ensure that persons who have seriously abused, in wartime, their right to participate in the public life of their country are prevented in the future from abusing their political rights in a manner prejudicial to the security of the state or the foundations of a democratic society ( ... ).”

37. One might argue that the two aforementioned cases relate to a period prior to the judgment in the case of Mathieu-Mohin and Clerfayt v. Belgium , the first judgment that defined clearly and authoritatively the extent of the rights covered by Article 3.

However, the Convention organs did not change their approach even after Mathieu-Mohin. In the case of Van Wambeke v. Belgium [35] , the applicant, a former member of the Waffen SS born in 1922 , was sentenced to fifteen years of extraordinary detention for treason by a judgment of the Ghent Military Court of 9 May 1945 ; he also lost his voting rights for life. In 1989 – that is almost forty-five years after the events – he was denied the right to vote in elections to the European Parliament. In 1991 the Commission rejected his application, reiterating the reasoning of the X v. Belgium decision quoted above.

38. I would like to place special emphasis on the fact that in all these cases, the right at stake was the active electoral right, the right to vote, that requires less qualification and much less responsibility than the right to stand for elections.

Generally speaking, the vast majority of the domestic Constitutions or electoral laws of the Contracting States to the Convention set up different criteria for active and passive electoral rights, the latter being subordinated to considerably higher standards than the former – thus there always is a category of persons who may vote but are not entitled to stand for election because of various impediments that disqualify them in terms of the domestic law (age, criminal record, bankruptcy, etc.). Such a distinction is only natural, if we think of the remarkable difference between the degree of accountability required from a citizen for a simple participation in the suffrage, and the degree of accountability that a legislator has to bear. And still, the Commission found three times that a perpetual restriction of this basic civic right was compatible with Article 3 of Protocol No. 1.

39. Now, coming back to the present case, I have considerable difficulty understanding how the majority, after having quoted the above decisions, could find a fundamental difference between them and the present case. The only argument, mentioned by the Court at the very end of § 88 of the judgment, is that the three former applicants had been convicted for very serious crimes, namely treason, whereas the applicant was never tried nor convicted.

This argument does not convince me at all. In fact, if we submitted those three cases to the same type of analysis that the Court applied in the present instance – though the very idea of such analysis seems to me to be wrong – I am sure that the domestic measures would not stand the test and the Court should indubitably find a violation of Article 3 of Protocol No. 1.

40. I could accept the decision of the majority to operate a dichotomy between the punitive and the preventive aspects of the applicant ’ s ineligibility (§ 87 of the judgment); however, it remains surprising to me why the present case has not been compared with X v. the Netherlands , X v. Belgium and Van Wambeke v. Belgium also under the preventive angle. If we follow this line, we will find that the first of these three applicants had been convicted for a non-violent crime implying merely ideological support for the occupation power – even though the Commission did not find any difference between him and the two others; that none of the applicants had ever been accused of having done something wrong for the many years after their conviction, and that the respective Governments had never blamed them for any disloyal conduct at the time of the introduction of their applications.

41. Certainly, one can insist on the fact that, unlike the applicant in the instant case, they all had been criminally convicted. However, we should remember that the time elapsed since their conviction was more than impressive: twenty-six years in the first case ( X v. the Netherlands ), thirty-one years for the second case ( X. v. Belgium ) and forty-six years in the third case ( Van Wambeke v. Belgium ).

It means that at least one generation had changed before the Commission came to examine the respective complaints, whereas in the present instance, the controversial events of 1991 still fresh in the memory of the Latvian people. In my opinion, this fact suffices to outweigh the aforementioned difference.

42. Finally, as to the “actual dangerousness” criterion set up by the majority, we should recall that on the date of the respective Commission decisions, the first applicant was eighty-six years old, the two others being aged sixty-seven and sixty-nine.

This being said, if we rigorously apply the criteria set up by the present judgment, the three former collaborators and traitors appear to be much more inoffensive at the moment when the Commission examined their cases than the applicant in the instant case is today. And still the Commission found no appearance of a violation of Article 3 of Protocol No. 1.

43. As I already said, in my view, the Commission followed the most reasonable way by basing its reasoning not on the actual dangerousness of the applicants – a criterion that the national authorities are in a better position to evaluate – but on the question whether they were qualified to take part in the suffrage.

Here I would like to emphasise once more that the applicant in the present case was subject to the mildest and most lenient form of interference with Convention rights – she has been deprived only of the right to be elected; on the contrary, she can vote and even chair a political party without any restrictions.

44. Of course, the Court is bound neither by the former Commission ’ s case-law nor by its own, and is free to reverse it at any moment. However, if the present judgment is to be considered such a reversal, it should have adopted a much more thorough and complete reasoning; in my eyes, one tiny argument at the end of § 88 is clearly insufficient.

45. As for myself, I remain convinced that in cases similar to the present instance and involving delicate considerations based on the painful political and historical experience of the country concerned, the Court must exercise the maximum self-restraint, reducing its control to two basic points: it should ensure, firstly, that the reasons given by the national authorities are serious and consistent and secondly, that there is no appearance of arbitrariness in the case.

VI.

46. Furthermore, I would like to mention some of the majority ’ s findings of fact that seem to me to be hardly appropriate.

Firstly, the majority notes that the organisations in which the applicant actively participated were not prohibited immediately after the first attempted of “coup d ’ état ” in 13 January 1991 , but only on 23 August 1991 after the failure of the second “coup d ’ état ”. The majority concludes that during this period the organisations were not illegal (§ 90 of the judgment).

However, a formal prohibition is a political decision. The Government decided not to act this way because of the presence of foreign military forces which were still in the country, closely collaborating with the Communist party and other antidemocratic organisations, to which the applicant belonged. The purely formalistic approach of the majority, qualifying an organisation which organised a “coup d ’ état ” as “legal”, ignores the real situation: a formal prohibition would destabilise the situation to the detriment of the new born democracy. This approach seems to me to be out of touch with the reality.

47. Secondly, the majority are of the opinion that the power of the national courts to assess the actual dangerousness of a concerned person is limited (§ 93 of the judgment).

This is true. However, the main purpose of the restrictions set up by Latvian law is to protect the Parliament from persons who have discredited themselves by their active participation in organisations which really attempted to overthrow the democratic order and to restore the former system of injustice – even if they still have some support in some parts of society. I have already explained that this might be necessary in specific situations for new democracies to be able to strengthen the confidence of the majority of the people in the democratic institutions, including the Parliament.

48. Thirdly, the majority also found a violation of Article 11 of the Convention (§ 111 of the judgment). I cannot follow the majority for the same reasons as for Article 3 of Protocol No. 1. I am of the opinion that the same considerations justifying the recognition of a wide margin of appreciation to the Contracting States apply to Article 11 of the Convention.

49. Fourthly, the majority decided to award to the applicant for pecuniary damage LVL 2,236.50 for the time when she was deprived of her seat on Riga City Council. In my view, this sum is not substantiated. The applicant could have suffered a pecuniary damage only if she had not any other earnings which would fully or partially compensate for the loss of her income from the city council (for example, unemployment benefits or salary from other employment instead of the lost income from of the city council). In the instant case the applicant did not submit any information on that.

50. One last remark in order to avoid any misunderstanding: I have not argued in favour of the restrictions in question, which are provided for by Latvian law. I only wanted to show that this is a genuine political question, which is important for the society of a new democracy, and which should be decided in the democratic political process within the country. I also wanted to draw attention to the problem of the Court ’ s judicial self-restraint in genuinely political matters. I think that in such cases the Court should be extremely careful, try to remain on the solid ground of judicial assessment, and not advance on to political ground, the latter being reserved for the democratic institutions of the Contracting States. That is why I have called for the application of a wide margin of appreciation.

[1] Para 7 – 37.

[2] Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 98 , ECHR 2003 ‑ II, and case law there cited.

[3] Ibid ., para. 96.

[4] Mathieu-Mohin and Clerfayt v. Belgium , judgment of 2 March 1987, Series A no. 113, p. 23, § 52; Gitonas and Others v. Greece , judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, pp. 1233- 12 34, § 39; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000 ‑ IV; Podkolzina v. Latvia , 46726/99, 9 April 2002, § 33, ECHR 2002-II; Selim Sadak and Others v. Turkey, nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, § 31, ECHR 2002-IV, and Hirst v. the United Kingdom (no. 2) , no. 74025/01, § 36, judgment of 30 March 2004 .

[5] Mathieu-Mohin and Clerfayt v. Belgium , cited above, pp. 22 – 23.

[6] Alliance des Belges v. Belgium , no. 8612/79, Commission decision of 10 May 1979 , Decision and Reports (DR) 15, p. 259.

[7] Polacco, Garofalo v. Italy , no. 23450/94, Commission decision of 15 September 1997 , (DR) 90, p. 5.

[8] Luksch v. Italy , no. 27614/95 , Commission decision of 21 May 1997 , (DR) 89, p. 76.

[9] Ganscher v. Belgium , no. 28858/95, Commission decision of 21 November 1996 , (DR) 87 , p. 130.

[10] W,X,Y and Z v. Belgium , nos. 6745/74 and 6746/74, Yearbook XVIII (1975) p, 236.

[11] Ibid.

[12] M v. UK , no. 10316/83, Commission decision of 7 March 1984 , (DR) p. 129 .

[13] Clerfayt et Al v. Belgium , no. 27120/95, Commission decision of 8 September 1997 , (DR) 90 , p. 35.

[14] Fryske Nasjonale Partij and Others v. the Netherlands , no. 11100/84, Commission decision of 12 December 1985 , (DR) 45 , p. 240.

[15] Holland v. Ireland , no. 24827/94, Commission decision of 14 April 1998 , (DR) 93 , p. 15.

[16] H v. Netherlands , no.  9914/82, Commission decision of 4 July 1983 , (DR) 33, p. 242.

[17] Hirst v. the United Kingdom (no. 2) , cited above .

[18] It is interesting to mention that on 11 September 2003 , forty-six members of all factions of the German Parliament submitted a bill proposing to revise the exclusion of minors from electoral rights and to grant these rights to all citizens from the very moment of birth (these rights could be exercised by the parents). This proposal, rather surprising at first sight , shows that even such a traditionally recogni s ed ground for exclusion from electoral rights might be subject to different opinions amongst democratic political forces.

[19] BVerfgE 83, 37 et seq ., 60.

[20] In a rece nt decision, the Court found that the provision of British law excluding prisoners from electoral rights without any differentiation according to th e seriousness of the conviction violates Article 3 of Protocol 1 (cf. Hirst v. the United Kingdom (no. 2) , no. 74025/01, § 36, judgment of 30 March 2004 ). Nevertheless, the Court recognised that the Contracting S tates have a wide margin of appreciation in determining how to link the disenfranchisement to the concrete offence for which the p erson is convicted ( op.cit. , § 51).

[21] Cf. Podkolzina v. Latvia , no. 46726/99, § 33, ECHR 2002-II.

[22] Cf. Mathieu-Mohin and Clerfayt v. Belgium , judgment of 2 March 1987, Series A no. 113, p. 23, § 52, as well as Gitonas and O thers v. Greece , judgment of 1 July 1997, Reports 1997-IV, pp. 1233-1234, § 39.

[23] Cf. Mark E. Villiger, Handbuch der Europäischen Menschenrechtskonvention , 2. Aufl., Zürich 1999, Rdnr. 649.

[24] See the references in the dissenting opinion of Judge Bonello.

[25] E.g., Matthews v. the United Kingdom [GC], no. 24833/94, ECHR 1999-I.

[26] Cf, e.g., Huan J. Linz and Alfred Stepan , Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe, Baltimore, 1996, and Chris Mögelin , Die Transformation von Unrechtsstaaten in demokratische Rechtsstaaten, Berlin , 2003.

[27] On the situation of the occupied Baltic States under international law, cf., e.g., William J.H. Hough, “The Annexation of the Baltic States and its Effect on the Development of Law Prohibiting Forcible Seizure of Territory.” In: New York Law School Journal of International & Comparative Law, 1985, No.2, pp.301-533, and Dietrich A. Loeber , “Legal Consequences of the Molotov-Ribbentrop Pact for the Baltic States : on the Obligation to Overcome the Problems Inherited from the Past.” In: Baltic Yearbook of International Law, Vol. 1, 2001.

[28] Germany was in a particular situation both after the end of the Nazi regime, in 1945 , and after the end of the East German Communist regime, in 1989. The resulting intense concentration on these problems gave strong impulses to both the (legal) theory and practice of current new democracies not only in Europe , but also elsewhere. Therefore legal terms like “ Unrechtsstaat ” and “ Vergangenheitsbewältigung ” became accepted in the legal terminology of some other languages.

[29]   However, the Court has accepted the criminal persecution of the representatives of the old regime if they committed crimes which were formally prohibited (but never prosecuted under the old regime), see Streletz, Kessler and Krenz v. Germany , see also my concurring opinion in this case. Cf. also: Jens Kreuter , Staatskriminalität und die Grenzen des Strafrechts , 1997.

[30] See Truth Commissions: A comparative assessment, 1996.

[31] Das Parlament , 1999, No. 17. However, this law of the Land of Th ü ringen was later declared unconstitutional because of the formal grounds that these matters should be regulated by a constitutional law, and not by a n ordinary law as in Th ü ringen, cf. Thueringer Verfassungsgerichtshof , jz of 25 May 2000 .

[32] Decision of 21 Ma y 1996 , BVerfgE 94,351 et seq .

[33] N o. 6573/74, Commission decision of 19 December 1974 , DR 1, p. 87 .

[34] N o. 8701/79, Commission decision of 3 December 1979 , DR 18, p. 250 .

[35] N o. 16695/90, Commission decision of 12 April 1991 .